U.S. Supreme Court Weighs Law on Filling Executive Branch Vacancies

By Mark Walsh — November 07, 2016 4 min read
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The U.S. Supreme Court on Monday dug its teeth into an Inside-the-Beltway case concerning who may temporarily serve in vacancies in federal positions that normally require an appointment by the president and confirmation by the Senate.

The case of National Labor Relations Board v. SW General Inc. (No. 15-1251) has implications for vacancies that arise in the U.S. Department of Education (as much as any other federal agency).

The U.S. solicitor general’s office identifies seven senior officials of the U.S. Department of Education, under the administrations of Presidents Bill Clinton, George W. Bush, and Barack Obama, whose acting service would have been unlawful under a federal appeals court’s decision interpreting the Federal Vacancies Reform Act of 1998.

The statute outlines who may fill vacant positions, with both Democratic and Republican administrations having taken a flexible view of the intricate requirements concerning “first assistants” and “PAS” offices—those that normally require a presidential appointment and Senate confirmation.

The vacancies statute says that when a PAS office becomes vacant, the first assistant to that officeholder “shall perform” the duties. The law also says the president may designate others to fill the office, such as a person appointed by the president and confirmed by the Senate to another office, or a person serving in a defined senior position who has served in the job for at least 90 days in the previous year.

Presidents had long designated acting agency officials to positions normally requiring Senate confirmation, in ways that sidestepped earlier statutes on vacancies. But the issue reached a flash point during Clinton’s administration. After the Senate refused to confirm Bill Lann Lee to the post of assistant attorney general for the civil rights division of the Department of Justice, Clinton designated him to perform the job’s duties anyway.

“Why did they do this?” Justice Stephen G. Breyer said during oral arguments, referring to Congress. “The name of that explanation is called Bill Lann Lee.”

Many in Congress saw the designation of Lee, who held progressive views on education and civil rights issues, as an end run around Senate confirmation. So, the measure included a provision that bars service in an acting capacity by a person who had been nominated to fill a vacant office on a permanent basis, if the designee had only limited service as the first assistant to the vacated position.

Presidents of both parties—Clinton, George W. Bush, and Obama—have construed the statute narrowly as applying only to first assistants who were nominated to fill a post. That means they agreed first assistants couldn’t serve as acting holders of the position and be nominated to fill that position. But those presidents did not agree they were so limited in designating other qualified officials in acting roles while also offering them for Senate confirmation.

The case before the justices stems from Obama’s designation of Lafe Solomon as acting general counsel of the National Labor Relations Board and nomination of Solomon to the post full-time.

SW General Inc., an ambulance company, challenged an NLRB unfair labor practices finding of the board by claiming that the finding was unauthorized because Solomon could not legally perform the duties of acting general counsel after being nominated to fill that position permanently.

The U.S. Court of Appeals for the District of Columbia Circuit agreed, ruling the 1998 statute’s restrictions on a nominee to serve a vacancy being able to serve in an acting role applied not just to first assistants but to the broader pool of people a president might consider.

The parties seem to agree that the appeals court decision calls into question some of the official actions taken by acting officials.

“These are people who ... may issue regulations, who make designations, who make important decisions in the Executive Branch,” Acting Solicitor General Ian H. Gershengorn said in reference to some of the officials on a list (in Appendix A of the solicitor general’s merits brief) of more than 100 federal officials during the past three administrations whose service would come under question based on the appeals court’s view.

“We have not gone back and catalogued all of the potential ramifications, but we do think that with over 100 officials over the course of 20 years, the effects of this are really quite significant,” Gershengorn said.

Of the seven Education Department officials from recent administrations that the solicitor general’s office identifies as falling into the category of being affected by the appeals court’s interpretation, just one is from the Obama administration: James H. Shelton III, designated in June 2013 as acting deputy secretary of education and later nominated for the post. The Senate confirmed him in 2014 for the post, which he has since left.

Shay Dvoretsky, a Washington lawyer represented SW General, told the justices that Congress’s concern about Bill Lann Lee “was not just that he was brought in from the outside at the last minute. ... Instead, what Congress imposed was a restriction on acting officials who are also the nominee, and there’s no reason to think that Congress’ concern about nominees serving as acting officials was limited just to first assistants.”

Dvoretsky said Solomon should have stepped away as acting general counsel of the NLRB when we was nominated to the post.

The justices asked tough questions of both sides and appeared to be leaning at least a bit toward SW General’s view of the statute. A decision in the case is expected by late June.

A version of this news article first appeared in The School Law Blog.